By George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law
On June 29, 2021, Florida Gov. Ron DeSantis signed into law HB 833, known as the “Protecting DNA Privacy Act,” which took effect in Florida October 1, 2021. Under the act, collecting or submitting another person’s DNA sample for analysis without his or her express consent now constitutes a second-degree felony in the state of Florida. It amends Section 760.40, Florida Statutes, with the criminal penalties being set forth in Section 817.5655, Florida Statutes.
The new law clarifies the extent to which individuals own their genetic information. It also creates new crimes for the unlawful collection, retention, analysis, disclosure, or sale of an individual’s DNA sample and the results of a DNA analysis. The act also has important implications for secondary uses of data by health care providers and others that perform genetic testing and analyze genetic information.
What is Genetic/DNA Privacy Law?
The use and accessibility of genetic testing, primarily through direct-to-consumer options (companies such as 23andMe and Ancestry.com ), has significantly increased in recent years, which has resulted in growing concerns about the privacy of genetic information and its use by third parties.
The Florida Legislature has focused on strengthening the protections surrounding genetic information. In 2020, it amended Florida law to limit the use of genetic information by life insurance companies for specific insurance purposes, including underwriting. Click here to read the final bill analysis for the act.
The Impact on Healthcare Professionals.
The new law will have the biggest impact on physicians who employ DNA testing in their practices. Physicians who collect or submit a patient’s DNA sample for DNA analysis will have to first obtain the patient’s express consent to do so.
“Express consent” is defined as “authorization by the person whose DNA is to be extracted or analyzed, or such person’s legal guardian or authorized representative, evidenced by an affirmative action demonstrating an intentional decision after the person receives a clear and prominent disclosure regarding the manner of collection, use, retention, maintenance, or disclosure of a DNA sample or results of a DNA analysis for specified purposes.”
This means that physicians who wish to have a patient’s DNA analyzed for a specified purpose need first to explain how the DNA sample will be collected, used, retained, and maintained and how the results of the DNA analysis will be used. This information ideally will be outlined in a formal, written document that the patient will sign. In addition, the legislation allows physicians to obtain a single express consent for every instance of a specified purpose or use.
What This Means For You.
Any healthcare professional engaged in such activities should consider reevaluating their consent processes to determine whether they obtain appropriate consent for all uses of de-identified results of DNA analysis. To learn more, click here.
Click here to view HB 833 in full.
Click here to review Section 760.40, Florida Statutes.
Click Here to review Section 817.5655, Florida Statutes, containing the criminal penalties.
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Peloquin, David. “What Fla. DNA Privacy Law Means For Health Providers.” Law360. (October 4, 2021). Web.
“How the new DNA privacy law could affect your practice.” Florida Society of Clinical Oncology. (September 20, 2021). Web.
About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law; he is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Suite 1000, Altamonte Springs, Florida 32714, Phone: (407) 331-6620 Toll-Free: (888) 331-6620.
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